CONGRESS, U. S. 



249 



legislation, may order, in the first instance, all 

 the cases which may, under the provisions of 

 the Constitution, go into the Circuit Court, to 

 be removed there whenever they are com- 

 menced in a State court. It is quite obvious, 

 from the reading of the Constitution, that if 

 you could order one of these forms removed, 

 you could the other. I have a precedent for 

 this. I am not going now merely by my own 

 speculations and conjectures. I have a full 

 precedent for it. 



" Now, what is the object of getting a case 

 into the Circuit Court of the United States ? 

 Is there any great purpose in it ? We cannot 

 but know that these very provisions of the Con- 

 stitution were intended to be provided for a 

 great occasion of this kind. The Constitution 

 contemplates that the State courts, in great 

 emergencies, and in relation to subjects which 

 concern the Government of the United States, 

 are not safe for the Government of the United 

 States always to trust. Suits may be brought 

 against those who have arrested and imprison- 

 ed men under the order of the executive, in 

 various States. They may be brought before a 

 justice of the peace, before a county court, 

 before a circuit court, according to the various 

 provisions of the different States as to their 

 jurisdictions. The great question arises before 

 them, was the President authorized to make 

 the order on which the defendant relies ? Did 

 the Constitution authorize it ? That is impor- 

 tant, not merely to the individuals sued, but to 

 the nation ; because it is most clear, as I take 

 it, that if the President and his subordinates, 

 and the individuals to whom his authority has 

 been deputed, have acted in good faith in this 

 period of trial, at least we must indemnify 

 them. We therefore have a pecuniary interest ; 

 and thus it becomes quite important to have 

 some sort of check as to the measure of dam- 

 ages that shall be awarded, if the court should 

 find these proceedings to be irregular. Accord- 

 ing to common-law principles, in such a case, 

 the court should tell the jury, in my humble 

 judgment, if they rejected the man's defence, 

 if he presented the order of the executive un- 

 der which he acted, and the court should de- 

 cide that it did not constitute a legal defence, 

 yet, after all, the court should tell the jury : ' If 

 you find that, though this was a mistaken au- 

 thority, the man acted in good faith, or if there 

 was a probable cause in law for making the 

 arrest, the most you can do is to give the de- 

 fendant actual damages. You will give no 

 exemplary damages ; you will give nothing by 

 way of what is commonly called smart money ; 

 you will give nothing for attacks through the 

 individual upon the vitals of the Constitution, 

 or all that. These people have acted in good 

 faith ; and if in your verdict you go beyond sim- 

 ply paying the man the damage sustained by him 

 by reason of his confinement for the time he 

 was actually confined, the court will set aside 

 your verdict.' But do we know that these 

 State judges will do this ? Have we any good 



reason to have confidence in their holding over 

 the jury the proper judicial influence to keep 

 them in potent control ? I am afraid of them. 

 I do not like to leave our citizens and officers 

 in their hands. I desire that the cases may be 

 carried into our courts, into the United States 

 Circuit Courts, in order to avail the defendants 

 of all the advantages and protections under our 

 Constitution which those courts give." 



Mr. Collamer closed by introducing a substi- 

 tute for the House bill, p. 241, which was re- 

 ferred to the Committee on the Judiciary, p. 256. 



On the 27th of January, the Committee on 

 the Judiciary reported this bill with an amend- 

 ment striking out all after the enacting clause 

 and substituting Mr. Collamer's bill. 



Mr. Harris, of New York, moved to amend 

 by inserting the words " civil or criminal," 

 after the word " prosecution." 



Mr. Trumbull, of Illinois, suggested numerous 

 objections. He said : " The amendment of the 

 committee which we are considering provides 

 for the transfer of suits, commenced against the 

 officers of the Government who have acted un- 

 der the authority of the President in making 

 arrests and doing other things during this rebel- 

 lion, from the State courts in which they may 

 be commenced, into the United States courts. 

 I think that may be done. The amendment 

 proposed by the senator from New York is 

 to extend this to criminal prosecutions. Now, 

 let us take a case. Suppose that a postmaster 

 in the State of Illinois, acting, as he contends, 

 under the authority of the Government, should 

 get into a wrangle and kill a man, if you 

 please ; I put an extreme case to test the prin- 

 ciple which it is sought to incorporate into 

 this bill. That is an offence against the peace 

 of the people of the State of Illinois ; it is no 

 offence against the United States. He is in- 

 dicted by the grand jury of the proper county 

 of the State of Illinois for murder. He files 

 his petition stating that he was acting under 

 the color of authority derived from the Presi- 

 dent of the United States through the Post- 

 master-General ; that case is thereupon trans- 

 ferred into the United States court, and it is to 

 proceed there in the same manner as in the 

 State court. When you get it there, can the 

 United States court administer the law of the 

 State of Illinois? It is no offence against any 

 law of the United States for one man to kill 

 another in the State of Illinois, unless it be in 

 the military service ; unless it be in a place 

 where the United States have jurisdiction, in 

 some fort or arsenal. Could the United States 

 court go on with the trial and convict him, in 

 case it should turn. out that he acted malicious- 

 ly in the killing ; and if convicted, could it sen- 

 tence him to be hung ? Who would have the 

 pardoning power in such a case ? Could the 

 President pardon the offender ? " 



Mr. Harris, of New York, replied : " Mr. 

 President, this power to transfer a cause from 

 a State court to the United States courts, falls 

 within the appellate jurisdiction of the Federal 



